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“Is this Rape? Sex on Trial” Nearly there, BBC Three

This blog has previously bemoaned the lack of education about consent. BBC Three this week tried to plug the gap with its programme “Is this Rape? Sex on Trial”. I watched with trepidation, but the result was much better than I expected. It allowed discussion by 24 young people who showed themselves to be thoughtful and articulate. The scenario they watched and discussed involved an acquaintance rape at a party where both parties had been drinking and there had been some form of relationship between them in the past. There was at the end of the programme guidance about the elements of rape. That is not to say that the programme was wholly accurate or successful.

The discussion amongst the young people showed that some “rape myths” are alive and well: that rapists are evil men who jump out of the bushes and attack strangers; that “normal” boys cannot be rapists; that a girl has a duty to fight back; that a boy has the right to proceed with sexual activity unless and until and girl stops him. The failure to really address those myths was a problem with the programme. But the greater problem was that it seemed these teenagers had never really thought through consent before, despite the stated fact that they and/or their friends were sexually active. The BBC’s attempt to get some debate going, and to educate young people about the law, in these circumstances is admirable, so many channels avoid serious topics and treat the law as some sort of game show or prime time drama.

Legally, there were some important errors. The young people and audience at home were asked only whether the fictional boy, Tom, believed in the fictional girl’s (Gemma) consent. It would have been easy to miss in the roundup of the law at the end that the defendant’s belief must be reasonable if it is to be successfully relied upon in defence to a rape allegation (SOA 2003, s.1(1)(c)). At no stage was the statutory requirement (in SOA 2003, s.1(2)) to consider the steps taken by the boy to ascertain the girl’s consent referred to. The cross-examination of Gemma at the trial involved irrelevant questions about her sexual history which would be unlikely to make it into a real trial due to the provisions of s.41 of the Youth Justice and Criminal Evidence Act 1999. The claim at the end that there is an “automatic” seven year sentence for rape was also inaccurate – there is a seven year starting point for a higher-culpability rape, although the sentence can go up or down from there. Arguably this was not a higher-culpability rape as set out in the Sentencing Council’s sentencing guideline and so would attract a five year starting-point in any event. In a television drama such slips can be overlooked as they are often required by the narrative, but in a programme designed to educate it was unfortunate that the information being given to young people was wrong.

I hope that BBC Three plans a follow-up programme correcting the errors and dealing specifically with the rape myths discussed by the young people in this programme. Crown Court judges regularly direct jurors to put such myths aside; it is a strength of the trial system in England and Wales that such direction is possible. How much better would it be if people were not coming into court rooms with those myths already entrenched. Consent education in schools is an important start, but discussions need to be had amongst family and friends, and in the media, to make it clear that consent is not about a checklist so you are covered in case of an allegation being made, but about communication with, and respect for, your partner as a person with the right to make their own positive decision about when they have sex, what they do and who they do it with. At heart, every decent person knows that, and any decent educational programme dealing with consent needs to make it clear.